BARKAT ULLAH KHAN vs ABDUL HAMID

ORDER

1. ABDUL KADIR SHAIKH, J.-This petition arises out of a suit filed by the respondent for ejectment of his tenant, petitioner herein, from House No. 22 Street No. 8, F-7/3, Islamabad. The respondent had given the house on lease to the petitioner on monthly rent of Rs.2300, and according to him, he bad terminated the lease by means of telegraphic notice dated 13-7-1978, and was entitled to possession of the demised premises. The petitioner resisted ejectment on the ground that notice under section 106 of the Transfer of Property Act, 1882, had not been served upon him. The Senior Civil Judge, Rawalpindi who heard the case held that the Transfer of Property Act, 1882, had not been extended to the Province of the Punjab and the Islamabad Federal Territory, and the petitioner cannot, therefore, take shelter under the provisions of section 106 of the Act. Learned Senior Civil Judge was, however, of the view that although the Transfer of Property Act, 1882, was not extended to Islamabad Federal Territory, yet the provisions of section 106 of the Act are to be followed as principles of equity, justice and good conscience, and the tenant is not to be taken by surprise by his landlord and he must be informed that his tenancy is being terminated. These principles, according to the learned Senior Civil Judge, were fully complied with by the respondent by sending telegraphic notice to the petitioner, and he accordingly decreed the suit in respondent's favour.

2. On appeal, the Additional Sessions Judge, Rawalpindi upheld the view of the trial Judge, and the High Court also refused to interfere, and dismissed the 'second appeal filed by the petitioner. He now seeks special leave to appeal.

3. Mr. Bashir Ahmad Ansari, learned counsel appearing in support of the petition submits that the High Court has erred in taking the view that the Transfer of Property Act, 1882, did not apply to Islamabad. According to the learned counsel since by virtue of Article 4 of the Province of West Pakistan (Dissolution) Order, 1970 (President's Order No. 1), Islamabad Capital Territory was constituted as the Centrally Administered Area, the Transfer of Property Act 1882, which is a Central Act, was automatically extended to Islamabad.

4. In order to appreciate the point raised by the learned counsel, reference is necessary to the language of section 1 of the Transfer of Property Act, 1882, in order to determine the extent of the application of the Act to the territories of Pakistan. Section 1, before the amendment introduced it by the President's Order No. 1 of 1964, read as under: - "1. Short title. This Act may be called the Transfer of Property Act, 1882.

5. Commencement. It shall come into force on the first day of July 1882.

6. Extent. This Act or any part thereof may by notification in the official Gazette be extended to the whole or any part of the Province and the Federal Territory of Karachi by the Provincial Government concerned.

7. And any Provincial Government may from time to time, by notification in the official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such Provincial Government from all or any of the following provisions, namely: Section 54, paragraphs 2 and 3, 59, 107 and 123: Notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any District or tract of country for the time being excluded from the operation of the Registration Act, 1908, under the power conferred by the first section of that Act or otherwise."

8. By the Central Adaptation of Laws Order, 1964 (President's Order No. 1 of 1964) the words "and Federal Territory of Karachi by the Provincial Government concerned" in section 1 were omitted and were substituted by "by the Provincial Government". This section, after 1975, reads as under: "I. Short title. -This Act may be called the Transfer of Property Act, 1882.

9. Commencement.-It shall come into force on the first day of July, 1882.

10. Extent. This Act or any part thereof may by notification in the official Gazette be extended to the whole or any part of the Province by Provincial Government.

11. And any Provincial Government may from time to time, by notification in the official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such Provincial Government from all or any of the following provisions, namely: Section 54, paragraphs 2 and 3, 59, 107 and 123: Notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any District or tract of country for the time being excluded from the operation of the Registration Act, 1908, under the power conferred by the first section of that act or otherwise."

12. Now the argument of the learned counsel that by the constitution of "Islamabad Capital Territory" as the "Centrally Administered Area" by virtue of the provision of section 4 of the Province of West Pakistan (Dissolution) Order, 1970 (President's Order No. 1 of 1970) the Transfer of Property Act, 1882, got automatically extended to Islamabad Capital Territory assumes that the Legislature had itself extended the provisions of the Transfer of Property Act 1882, to the Centrally Administered Areas as existed when the Act was passed and also to those areas which were even afterwards to be constituted as the Centrally Administered Areas. With due respect to the learned counsel, this assumption is neither borne out by the provisions of section 1 nor the provisions of the section can possibly permit an interpreta--tion to the above effect. 1n this behalf, learned Single Judge in the High Court has rightly observed that "the Legislature did not itself make it (Act) applicable to any part of the country, and it was left to the Provincial Governments to extend its application to the areas to which they were, concerned by issuing notification in this behalf". Learned Single Judge also rightly observed that "the Act does not become applicable to Islamabad A merely for the reason that it is a Federal Area".

13. Mr. Bashir Ahmad Ansari admits that up to the date of the filing of the --suit no notification had been issued by the Provincial Government extending, the Act to Islamabad Federal Territory. In the absence of such a notification learned Single Judge in the High Court rightly held that the provisions o section 106 of the Act were not applicable but these are to be followed a principles of justice, equity and good conscience. Learned Single Judge also rightly held for the reasons stated by him that these principles were duly complied with and the suit could not be dismissed for non- service of the notice to the petitioner regarding the termination of his tenancy.

14. For these reasons there is no merit in this petition, and it is dismissed with no orders to costs.

15. At this stage Mr. Bashir Ahmad Ansari requested that the petitioner may be granted two months' time to vacate the demised premises. The request is granted with the condition that the petitioner shall deposit rent in Court in terms of the orders passed in the case in this behalf and shall voluntarily hand over vacant possession of the premises to the respondent on the expiry of two months.